Editorial: Helping refugees flee persecution should not be illegal

In September 2007, American humanitarian aid worker Janet Hinshaw-Thomas accompanied 12 refugee-seeking Haitians to the Quebec border. For her trouble, she was promptly arrested and charged with human smuggling under Canada’s Immigration and Refugee Protection Act.

One can see why authorities decided to charge Hinshaw-Thomas, since Section 117 of the IRPA states: “No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.”

Hinshaw-Thomas’s conduct therefore seemed in violation of the law. Yet her conduct also seemed to fall outside behaviour the law is aimed at preventing — that is, the smuggling of people for financial gain, for terrorism, or for some other nefarious purpose.

The decision to charge Hinshaw-Thomas provoked an intense backlash, with three former federal attorneys-general and three former ministers of immigration penning a letter which read, in part:

“The arrest of Janet Hinshaw-Thomas ... telegraphs the deeply disturbing message that it is now illegal to assist asylum seekers to ask Canada for protection from persecution. This message is inimical to achievement of the IRPA’s objectives of fulfilling ‘Canada’s international legal obligations with respect to refugees’ ...

“To ensure that asylum seekers continue to receive the assistance they need and which is their legal right, we urge the Government of Canada to ensure that those with humanitarian motives who assist asylum-seekers to access Canadian refugee determination procedures will not be charged with aiding, abetting, or otherwise ‘smuggling’ within the meaning of s. 117 of IRPA. Appropriate regulatory and legislative changes should be adopted.”

Consequently, the charges against Hinshaw-Thomas were stayed, but no regulatory or legislative changes were adopted. And that means the law remains overly broad in that humanitarian aid workers — or family members of refugee-seekers — could still face criminal charges if they help refugee-seekers to come to Canada.

So it should come as no surprise that B.C. Supreme Court Justice Arne Silverman on Monday declared Section 117 of the IRPA unconstitutional and therefore of no force and effect. Specifically, Silverman held that Section 117’s overbreadth violated people’s Section 7 Charter right to life, liberty and security of the person.

Silverman did acknowledge the law’s importance in combating human smuggling, but he stressed that the law need not be as broad as it is to accomplish that important objective. For example, he noted that the law could still achieve its aims with a narrower definition of “human smuggling” — where smuggling includes other elements such as clandestine or surreptitious entry into Canada, or where it is conducted for financial gain or for a terrorist or criminal organization.

However, it is ultimately up to Parliament to decide exactly how to amend the law so that it complies with the Charter. This is something Parliament should have done after the Hinshaw-Thomas debacle, and something Parliament should certainly do now.

But what Parliament does will depend in large part on whether the Crown decides to appeal Silverman’s decision. If it does appeal, it will likely be years before any changes to the law are made, which will likely leave many cases of alleged human smuggling in limbo.

If, on the other hand, the Crown chooses not to appeal, then the matter will properly be before Parliament. And that’s where it should be right now, since it’s time the Immigration and Refugee Protection Act ceased persecuting people who help others to flee their own persecution.

Comments

We encourage all readers to share their views on our articles and blog posts. We are committed to maintaining a lively but civil forum for discussion, so we ask you to avoid personal attacks, and please keep your comments relevant and respectful. If you encounter a comment that is abusive, click the "X" in the upper right corner of the comment box to report spam or abuse. We are using Facebook commenting. Visit our FAQ page for more information.

Share

Editorial: Helping refugees flee persecution should not be illegal

Video

Best of Postmedia

Be afraid. Be very afraid. Ignore the diversions in the United States: athletes kneeling or standing during the national anthem; Republicans flailing and failing again on health care; a kick-boxing creationist possibly becoming senator from Alabama. Calamity looms elsewhere. We are hurtling toward war with North Korea. It may be as early as next month. […]

It wasn’t in the middle of a farmer’s muddy field or deep in the boreal forest where the Canadian oilsands truly struck pay dirt. It was inside Fort McMurray’s recreation centre. More than 1,400 oilpatch workers, corporate executives, provincial leaders and the country’s prime minister assembled 21 years ago in northern Alberta to grasp a […]

Google’s powerful search engine is defeating some court-ordered publication bans in Canada and undermining efforts to protect young offenders and victims. Computer experts believe it’s an unintended, “mind-boggling” consequence of Google search algorithms. In six high-profile cases documented by the Citizen, searching the name of a young offender or victim online pointed to media coverage […]

Almost Done!

Postmedia wants to improve your reading experience as well as share the best deals and promotions from our advertisers with you. The information below will be used to optimize the content and make ads across the network more relevant to you. You can always change the information you share with us by editing your profile.

By clicking "Create Account", I hearby grant permission to Postmedia to use my account information to create my account.

I also accept and agree to be bound by Postmedia's Terms and Conditions with respect to my use of the Site and I have read and understand Postmedia's Privacy Statement. I consent to the collection, use, maintenance, and disclosure of my information in accordance with the Postmedia's Privacy Policy.

Postmedia wants to improve your reading experience as well as share the best deals and promotions from our advertisers with you. The information below will be used to optimize the content and make ads across the network more relevant to you. You can always change the information you share with us by editing your profile.

By clicking "Create Account", I hearby grant permission to Postmedia to use my account information to create my account.

I also accept and agree to be bound by Postmedia's Terms and Conditions with respect to my use of the Site and I have read and understand Postmedia's Privacy Statement. I consent to the collection, use, maintenance, and disclosure of my information in accordance with the Postmedia's Privacy Policy.